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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN E. )HUMPHREY ; ROBERT POVILAT and )

MILTON PERSINGER; MEREDITH )

MILLER and ANNA LISA CARMICHAEL; )

KRISTY SIMMONS and MARSHAY )

SAFFORD; KRISTIE OGLE and JENNIFER )

OGLE; KEITH INGRAM and ALBERT )

HALLOWAY PIGG III; GARY WAYNE )

WRIGHT II and BRANDON MABREY, )

individually and as Class Representatives, )

)

)Plaintiffs, )

)

v. ) Civil Action No. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for )

the State of Alabama; DON DAVIS, )

in his official capacity as Probate Judge of )

Mobile County, Alabama, individually and as )

Class Representative; and TIM RUSSELL, in )

his official capacity as Probate Judge of )Baldwin County, Alabama, individually and as )

Class Representative, )

)

Defendants. )

SECOND AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

CLASS ACTION

1.

Alabama law denies the issuance of marriages licenses to same-sex couples, and

refuses to recognize the marriages of same-sex couples lawfully entered in other jurisdictions. See

Ala. Const., art. I, § 36.03; Ala. Code § 30-1-19. In so doing, Alabama violates the guarantees of

the Fourteenth Amendment to the Constitution of the United States.

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 1 of 22

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2. The Named Plaintiffs and the members of the Plaintiff Class1 are same-sex couples

who live in Alabama. The situations faced by these couples are similar to those faced by many

other same-sex couples in Alabama who are denied the basic rights, privileges, and protections of

marriage for themselves and their children. The Named Defendants and the members of the

Defendant Class2 are Alabama state officials whose duties include enforcement, under color of

state law, of Alabama’s prohibition on the issuance of marriages licenses to same-sex couples and

its refusal to recognize the lawful marriages of same-sex couples.

3. Alabama, like other states, encourages and regulates marriage through hundreds of

laws that provide benefits to and impose obligations upon married couples. In exchange, Alabama

receives the well-established benefits that marriage brings: stable, supportive families that create

loving homes for children and contribute to both the social and economic well-being of Alabama.

4. Alabama’s refusal to permit same-sex couples to marry and to recognize the

existing marriages of same-sex couples violates the Due Process and Equal Protection Clauses of

the United States Constitution. This Court should so declare and issue an injunction requiring

Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage

licenses to Plaintiffs and members of the Plaintiff Class without regard to their status as same-sex

couples, and requiring all members of the Defendant Class to recognize the marriages of same-sex

couples for all purposes under state law.

5. Named Plaintiffs James N. Strawser and John E. Humphrey, Robert Povilat and

Milton Persinger, Meredith Miller and Anna Lisa Carmichael, and Kristy Simmons and Marshay

1 The Plaintiff Class is defined in paragraph 38 below. The Named Plaintiffs and themembers of the Plaintiff class are collectively referred to herein as “Plaintiffs.”

2 The Defendant Class is defined in paragraph 45 below. The Named Defendants and the

members of the Defendant Class are collectively referred to herein as “Defendants.”


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Safford are same-sex couples who have married in Alabama, pursuant to marriage licenses duly

issued by an Alabama probate judge as a result of the Court’s preliminary injunction in this action.

Named Plaintiffs Kristie Ogle and Jennifer Ogle, Keith Ingram and Albert Halloway Pigg III, Gary

Wayne Wright II and Brandon Mabrey, are unmarried same-sex couples in committed

relationships who live in Alabama and desire to marry in their home state. Plaintiffs meet all the

requirements Alabama imposes for the issuance of marriage licenses and the recognition of lawful

marriages except that they are same-sex couples.

6. Plaintiffs wish to publicly declare their love and commitment before their family,

friends, and community; to join their lives together and to enter into a legally binding commitment

to one another; and to share in the protections and security that marriage provides. Plaintiffs have

strong ties to Alabama and marriage is of immense personal importance to them. Plaintiffs are

spouses in every sense except for their inability to legally marry under Alabama law.

7. Alabama’s exclusion of same-sex couples from marriage and refusal to respect the

marriages of legally married same-sex couples adversely impact the Plaintiff couples in real and

significant ways. When Alabama withholds a marriage license from a same-sex couple, or refuses

to recognize a same-sex couple’s valid marriage, it circumscribes the affected individuals’ basic

life choices, classifies the affected individuals and couples in a manner that denies them the public

recognition and myriad benefits of marriage, prevents the couple from making a legally binding

commitment to one another and from being treated by the government and by others as a family

rather than as unrelated individuals, and harms society by burdening and disrupting committed

families and preventing couples from being able to fully protect and assume responsibility for one

another and their children.


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8. Alabama’s exclusion of same-sex couples from marriage and refusal to respect

existing marriages undermines the Plaintiff couples’ ability to achieve their life goals and dreams,

disadvantages them financially, and denies them “dignity and status of immense import.” United

States v. Windsor , 133 S. Ct. 2675, 2692 (2013). Alabama’s disparate treatment of same-sex

couples “tells those couples and all the world that their [relationships] are unworthy” of

recognition. Windsor , 133 S. Ct. at 2694. By singling out same-sex couples and their families and

excluding them from any type of marital protection, Alabama “humiliates . . . children now being

raised by same-sex couples” and “makes it even more difficult for the children to understand the

integrity and closeness of their own family and its concord with other families in their community

and in their daily lives.” Windsor , 133 S. Ct. at 2694.

9. Alabama’s exclusion of same-sex couples from marriage and its refusal to respect

the marriages of same-sex couples deprive the Plaintiffs of their fundamental right to marry and

infringe upon their constitutionally protected interests in liberty, dignity, privacy, autonomy,

family integrity, and intimate association.

10.

Alabama’s treatment of Plaintiffs is subject to strict scrutiny because it burdens

fundamental constitutional rights. Alabama’s treatment of Plaintiffs cannot survive any level of

constitutional scrutiny, however, because it does not rationally further any legitimate government

interest, but serves only to injure and humiliate same-sex couples and their families.

11. Plaintiffs seek a declaration from this Court that Ala. Const., art. I, § 36.03 and Ala.

Code § 30-1-19 violate the Fourteenth Amendment to the United States Constitution, and a

judgment permanently enjoining Defendants from enforcing those provisions and any other

Alabama laws or orders that prohibit same-sex couples from marrying within the state or that

prohibit recognition of valid marriages of same-sex couples.


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12. Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of

marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United

States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of same -

sex couples under state law violates the Due Process and Equal Protection Clauses of the United

States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as

a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and

Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and

the members of the Defendant Class to issue marriage licenses to all same-sex couples who

otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants

to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant

to marriage licenses issued in Alabama or any other jurisdiction at any time.

13. Plaintiffs further seek attorney fees pursuant to 42 U.S.C. § 1988.

14. Plaintiffs state the below causes of action against Defendants in their official

capacities for purposes of seeking declaratory and injunctive relief.

15.

The declaratory and injunctive relief requested in this action is sought against each

Defendant; against each Defendant’s officers, employees, and agents; and against all persons

acting in active concert or participation with any Defendant, or under any Defendant’s supervision,

direction, or control.

JURISDICTION AND VENUE

16.

This action arises under the Constitution and laws of the United States, including

Article III, Section 1, of the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is


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conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction supporting Plaintiffs’

claims for attorneys’ fees is conferred by 42 U.S.C. § 1988.

17. Venue is proper in the Southern District of Alabama pursuant to 28 U.S.C. §

1391(b). All of the events alleged herein occurred within the State of Alabama, and all of the

parties are and were residents of the State of Alabama at all relevant times.

PARTIES

A. The Named Plaintiffs

18. Named Plaintiffs James Strawser and John Humphrey, who reside in Mobile

County, Alabama, applied for a marriage license in that county but were denied a license because

of Alabama’s constitutional and statutory prohibitions on marriage for same-sex couples. Plaintiff

Strawser is facing health issues requiring surgery that put his life at great risk. Prior to previous

hospitalizations for surgery, Plaintiff Strawser had given Plaintiff Humphrey a medical power of

attorney, but was told by the hospital that the facility would not honor the document because

Humphrey was not a family member or spouse. In addition, Plaintiff Strawser’s mother faces

health issues, and he is concerned that Humphrey will not be permitted to assist his mother with

her affairs should Strawser pass away in the near future. On February 9, 2015, the effective date

of this Court’s entry of an order and preliminary injunction declaring Alabama’s marriage ban for

same-sex couples unconstitutional, Plaintiffs Strawser and Humphrey again appeared at Defendant

Davis’s office in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a

license because Defendant Davis elected to cease issuance of marriage licenses in Mobile County

until this Court clarified his legal obligations. As a result of this Court’s further order of February

12, 2015, granting a preliminary injunction in this action, Plaintiffs Strawser and Strange married

in Alabama pursuant to a marriage license issued by Defendant Davis.


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19. Named Plaintiffs Robert Povilat and Milton Persinger have been in a committed

relationship for two years and reside in Mobile County, Alabama. Plaintiff Povilat has survived

two bouts of prostate cancer and fears that he could be diagnosed with cancer again. The couple

wishes to be married in Alabama, because, among other things, it is extremely important to them

that Plaintiff Persinger be permitted to care for Plaintiff Povilat should further health problems

arise. On February 9, 2015, Plaintiffs Povilat and Persinger appeared at Defendant Davis’s office

in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because

Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court

clarified his legal obligations. As a result of this Court’s further order of February 12, 2015,

granting a preliminary injunction in this action, Plaintiffs Povilat and Persinger married in

Alabama pursuant to a marriage license issued by Defendant Davis.

20. Named Plaintiffs Meredith Miller and Anna Lisa Carmichael have been in a

committed relationship for almost 9 years and reside in Mobile County, Alabama. The couple hope

to have children, but are concerned that if they are not married, their children will be exposed to

the damaging message that their family is not as worthy of dignity and respect as other families in

Alabama and that their children will be denied important legal protections that come with marriage.

On February 9, 2015, Plaintiffs Miller and Carmichael appeared at Defendant Davis’s office in

Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because

Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court

clarified his legal obligations. As a result of this Court’s further order of February 12, 2015,

granting a preliminary injunction in this action, Plaintiffs Miller and Carmichael married in

Alabama pursuant to a marriage license issued by Defendant Davis.


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21. Named Plaintiffs Kristy Simmons and Marshay Safford have been in a committed

relationship for more than 2 years and reside in Mobile County, Alabama. The couple are raising

together three of Plaintiff Simmons’s children from a prior relationship. They want to get married

in order to have a legal family relationship and to build stability for their children. In addition,

Simmons has been diagnosed with Wegener’s Granulomatosis, a rare disorder that causes her

blood vessels to become inflamed and that can damage major organs. Being able to marry is

especially important to the couple that Plaintiff Safford and their children have legal protections

in the event that Plaintiff Simmons becomes ill or incapacitated. On February 9, 2015, Plaintiffs

Simmons and Safford appeared at Defendant Davis’s office in Mobile, Alabama, to apply for a

marriage license, but were unable to obtain a license because Defendant Davis elected to cease

issuance of marriage licenses in Mobile County until this Court clarified his legal obligations. As

a result of this Court’s further order of February 12, 2015, granting a preliminary injunction in this

action, Plaintiffs Simmons and Safford married in Alabama pursuant to a marriage license issued

by Defendant Davis.

22.

Named Plaintiffs Kristie Ogle and Jennifer Ogle have been in a committed, loving

relationship for 22 years and have lived in Alabama for most of the last 14 years. They have a

child who was born in the state in 2002. They wish to marry in order to obtain legal recognition

for their family and to build stability for their child. Each day that they are not permitted to marry,

they and their child experience uncertainty about whether they will be treated as family members

in the event of an emergency. On March 4, 2015, they went to Defendant Davis’s office in Mobile

County to obtain a marriage license but were unable to obtain one. On March 5, 2015, Kristie

Ogle called Defendant Russell’s office in Baldwin County and was told that while Defendant


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Russell is issuing marriage licenses to opposite-sex couples, he is not issuing licenses to same-sex

couples.

23. Named Plaintiffs Keith Ingram and Albert Halloway Pigg III, have been in a

committed, loving relationship for approximately one year. They moved together to Dothan,

Alabama, the town in which Plaintiff Ingram grew up, to be near his family. They wish to marry

in order to obtain legal recognition for their family and to declare their commitment to each other

before their loved ones and community. Each day that they are not permitted to be married, they

experience uncertainty about whether they will be treated as family members in the event of an

emergency. Plaintiffs Ingram and Pigg drove to the probate office in the county in which they

live, Houston County, on February 10, 2015, and again on February, 17, 2015, to obtain a marriage

license, but were refused. On March 5, 2015, Plaintiff Ingram called Defendant Russell’s office

in Baldwin County and was told that while Defendant Russell is issuing marriage licenses to

opposite-sex couples, he is not issuing licenses to same-sex couples.

24. Named Plaintiffs Gary Wayne Wright II and Brandon Mabrey have been in a

committed, loving relationship for eighteen years and have lived together in Alabama for six years.

Plaintiff Wright served in the U.S. Navy and was honorably discharged under the federal

government’s now-repealed Don’t Ask, Don’t Tell policy when he was asked to reveal his sexual

orientation and admitted that he is gay. Since that time, the couple have fought together to receive

veteran’s benefits and coverage for Wright, including coverage for treatment for a muscular

disorder that leaves him dependent on a wheelchair. They wish to marry in order obtain legal

recognition for their family legal and to declare their commitment to each other before their loved

ones and community. Each day that they are not permitted to be married, they experience

uncertainty about whether they will be treated as family members in the event of an emergency.


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After this Court declared Alabama’s exclusion of same-sex couples from civil marriage

unconstitutional, the couple drove to the probate office in Marshall County, the county in which

they live, to obtain a marriage license. When they arrived, they were told that the Marshall County

Probate Judge refused to issue marriage licenses to same-sex couples, although he would continue

to issue marriage licenses to couples of different sexes. Plaintiff Wright visited the Marshall

County Probate Judge’s Office again on March 2, 2015, to obtain a marriage license, and a clerk

told him that the probate judge would no longer issue marriage licenses to anyone. On March 5,

2015, Plaintiffs Wright and Maybrey called Defendant Russell’s office in Baldwin County and

were told that while Defendant Russell is issuing marriage licenses to opposite-sex couples, he is

not issuing licenses to same-sex couples.

B. The Named Defendants

25. Named Defendant Luther Strange is Attorney General of the State of Alabama.

Defendant Strange is responsible for enforcing and ensuring compliance with the state constitution

and statutes prescribed by the legislature, including Alabama’s law barring same-sex couples from

marriage. Attorney General Strange was acting under color of state law at all times relevant to

this complaint. He is sued in his official capacity.

26. Named Defendant Don Davis is Probate Judge of Mobile County, Alabama. Under

Alabama law, his administrative duties include issuance of marriage licenses. His duties in issuing

marriage licenses are ministerial in nature, and not part of any judicial or discretionary function.

Defendant Davis was acting under color of state law at all times relevant to this complaint. He is

sued in his official capacity.

27. Named Defendant Tim Russell is Probate Judge of Baldwin County, Alabama.

Under Alabama law, his administrative duties include issuance of marriage licenses. His duties in


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issuing marriage licenses are ministerial in nature, and not part of any judicial or discretionary

function. Defendant Russell was acting under color of state law at all times relevant to this

complaint. He is sued in his official capacity.

28. Defendants, through their respective duties and obligations, are responsible for

enforcing Alabama’s laws barring same-sex couples from marriage and Alabama’s policy of

refusing to recognize the valid marriages of same-sex couples. Each Defendant, and those subject

to their supervision and control, have caused the harms alleged, and will continue to injure

Plaintiffs if not enjoined. Accordingly, the relief requested is sought against all Defendants, as

well as all persons under their supervision and control, including their officers, employees and

agents.

GENERAL ALLEGATIONS

Alabama’s Laws Barring Same-Sex Couples from Marriage

29. The “Sanctity of Marriage Amendment” to the Alabama Constitution provides,

among other things, that “[n]o marriage license shall be issued in the State of Alabama to parties

of the same sex,” and that “[t]he State of Alabama shall not recognize as valid any marriage of

parties of the same sex that occurred or was alleged to have occurred as a result of the law of any

jurisdiction regardless of whether a marriage license was issued.” Ala. Const., art. I, § 36.03. The

Alabama Code contains identical provisions. Ala. Code § 30-1-19.

Harms Caused by Alabama’s Laws Barring Same-Sex Couples from Marriage

30. Plaintiffs are residents of Alabama who experience the same joys and challenges of

family life as their neighbors, co-workers, and other community members who may marry freely

and whose legal marriages are respected under Alabama law. The Plaintiffs are productive,


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contributing citizens who are denied the same legal shelter, dignity, and respect afforded by

Alabama to other families through access to the universally celebrated status of marriage.

31. Alabama’s exclusion of the Plaintiffs from marriage, and Defendants’ enforcement

of that exclusion, as well as Alabama’s refusal to respect the marriages of legally married same -

sex couples, subject the Plaintiff couples to an inferior “second class” status as Alabama citizens

relative to the rest of the community. These laws deprive the Plaintiff couples of equal dignity,

security, and legal protections afforded to other Alabama families.

32. In addition to stigmatizing an entire class of Alabama’s population as second-class

citizens, Alabama’s prohibition on marriage by same-sex couples, and its refusal to recognize valid

marriages from other jurisdictions, deprive same-sex couples of critically important rights and

responsibilities that married couples rely upon to secure their marriage commitment and safeguard

their families

33. In reliance on this Court’s orders of January 23, 26, and 28, 2015, which declared

Alabama’s laws excluding same-sex couples from marriage unconstitutional and made clear that

the federal Constitution requires Alabama officials to issue marriage licenses to same-sex couples

and to recognize the valid marriages of same-sex couples for all purposes, Named Plaintiffs James

N. Strawser and John E. Humphrey, Robert Povilat and Milton Persinger, Meredith Miller and

Anna Lisa Carmichael, and Kristy Simmons and Marshay Safford appeared in person at the offices

of Defendant Davis on February 9, 2015, to apply for a marriage license. Each couple was unable

to obtain a license. The reason each couple was unable to obtain a marriage license from Defendant

Davis was that they are a same-sex couple, and Defendant Davis elected to close the marriage

licensing office in Mobile until this Court issued further clarifications concerning his legal

obligations with respect to issuance of marriage licenses to same-sex couples. As a result of this


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Court’s further order and preliminary injunction issued on February 12, 2015, each of these

couples was able to marry in Alabama pursuant to a marriage license issued by Defendant Davis.

34. Named Plaintiffs Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Halloway

Pigg III, Gary Wayne Wright II and Brandon Mabrey have been unable to obtain a marriage license

from Defendant Russell. The reason each couple was unable to obtain a marriage license from

Defendant Russell was that they are a same-sex couple. Defendant Russell is not issuing marriage

licenses to same-sex couples.

35. Named Plaintiffs Kristi Ogle and Jennifer Ogle attempted to obtain a marriage

license from Defendant Davis but were unable to do so because he has ceased issuing marriage

licenses.

36. In addition, in the absence of the preliminary injunction previously entered by the

Court in this action, Defendant Strange would continue to deny recognition to the marriages of the

Named Plaintiffs or other same-sex couples validly entered into in Alabama or any other

jurisdiction. A permanent injunction is therefore warranted to ensure that Defendant Strange will

recognize any marriage that Plaintiffs enter into as a result of this Court’s orders in this action.

37. Like the Named Plaintiffs, each member of the Plaintiff Class either has been

unable to marry his or her same-sex partner in Alabama because of the marriage ban or has validly

married a partner of the same sex but is treated as a legal stranger to his or her spouse under

Alabama law.

CLASS ALLEGATIONS

The Plaintiff Class

38. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a),

23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples


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who are injured by Alabama’s marriage ban (the “Plaintiff Class”). The Plaintiff Class, as

proposed by Named Plaintiffs, consists of all persons in Alabama who wish to obtain a marriage

license in order to marry a person of the same sex and to have that marriage recognized under

Alabama law, and who ar e unable to do so because of the enforcement of Alabama’s laws

prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their

marriages.

39. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ.

P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in Alabama

who are married or would marry if Alabama law permitted them to do so. Alabama’s marriage

ban, and Defendants’ enforcement of it, prevents all of those couples from either marrying or

having their valid marriage from another jurisdiction recognized in the State.

40. There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:

a. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of due process by denying Plaintiffs the fundamental right to

marry, and by depriving them of constitutionally protected interests in

liberty, dignity, privacy, autonomy, family integrity, and intimate

association;

b. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of equal protection by discriminating on the basis of sex and

sexual orientation; and

c. the level of constitutional scrutiny applicable to governmental

discrimination based on sexual orientation.


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41. The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their

claims all arise from Alabama’s marriage ban and are based on the same constitutional provisions

and arguments.

42. Named Plaintiffs are capable of fairly and adequately protecting the interests of the

Plaintiff Class because they do not have any interests antagonistic to the class. Named Plaintiffs

and the Plaintiff Class both seek to enjoin enforcement of Alabama’s marriage ban and obtain a

declaration that the ban violates the guarantees of the Fourteenth Amendment. Moreover, Named

Plaintiffs are represented by counsel experienced in complex civil rights litigation, including

litigation seeking the freedom to marry for same-sex couples in many states across the nation.

43. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because

prosecution of separate actions by individuals would create a risk of inconsistent and varying

adjudications, resulting in some Alabama same-sex couples having access to marriage, or

recognition for their valid marriage, and others not. In addition, prosecution of separate actions by

individual members could result in adjudications with respect to individual members that, as a

practical matter, would substantially impair the ability of other members to protect their interests.

44. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2)

because Defendants’ enforcement of the marriage ban applies generally to the class, by precluding

all class members from marrying or having a valid marriage from another jurisdiction recognized.

The injunctive and declaratory relief sought is appropriate respecting the class as a whole.

The Defendant Class

45. Plaintiffs bring this action against the Named Defendants both individually and,

pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf

of all Alabama probate judges who are or may enforce Alabama’s marriage ban (the “ Defendant


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Class”). The Defendant Class, as proposed by Named Plaintiffs, consists of all Alabama county

probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance

of marriage licenses to same-sex couples and refusing to recognize their marriages.

46. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ.

P. 23(a)(1). Upon information and belief, more than sixty (60) county probate judges in Alabama

currently are enforcing the marriage ban and are declining to issue marriage licenses to otherwise

qualified same-sex couples. Defendants’ enforcement of the marriage ban prevents same-sex

couples from either marrying or having their valid marriage from another jurisdiction recognized

in the State.

47. There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:

a. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of due process by denying Plaintiffs the fundamental right to

marry, and by depriving them of constitutionally protected interests in

liberty, dignity, privacy, autonomy, family integrity, and intimate

association;

b. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of equal protection by discriminating on the basis of sex and

sexual orientation; and

c. the level of constitutional scrutiny applicable to governmental

discrimination based on sexual orientation.

48. The claims against the Named Defendants are typical of those of the claims against

the Defendant Class, as their claims all arise from Alabama’s marriage ban and are based on the


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same constitutional provisions and arguments. The defenses expected to be asserted by the Named

Defendants likewise are common to the members of the Defendant Class.

49. Named Defendants are capable of fairly and adequately protecting the interests of

the Defendant Class because they do not have any interests antagonistic to the class. Named

Defendants and the Defendant Class both asser t that they are bound to enforce Alabama’s marriage

ban. Moreover, the Attorney General of Alabama is named herein as a Defendant, asserts that the

marriage ban does not violate the guarantees of the Fourteenth Amendment, and is capable of fairly

and adequately protecting the interests of the Defendant Class.

50.

This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because

prosecution of separate actions against individuals would create a risk of inconsistent and varying

adjudications, resulting in some Alabama probate judges being required to issue marriage licenses

to same-sex couples and required to respect the marriages of same-sex couples, and others not. In

addition, prosecution of separate actions against class members could result in adjudications with

respect to individual members that, as a practical matter, would substantially impair the ability of

other members to protect their interests.

51. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2)

because Plaintiffs’ desire to obtain marriage licenses and to have their marriages respected applies

generally to the Defendant Class, as Alabama couples may request marriage licenses from any

county probate judge or may seek to have a valid marriage from another jurisdiction recognized

by any probate judge. The injunctive and declaratory relief sought is appropriate respecting the

class as a whole.


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CLAIMS FOR RELIEF

First Claim for Relief:

Alabama’s Ban on Marriage by Same-Sex Couples Deprives

Plaintiffs of Their Fundamental Right to Marry under the Due Process and Equal

Protection Clauses of the United States Constitution

52. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of

this complaint as though fully set forth herein.

53. The Due Process Clause of the Fourteenth Amendment of the United States

Constitution provides that no “State [shall] deprive any person of life, liberty, or property, without

due process or law.” U.S. CONST. AMEND. XIV § 1. The Due Process Clause protects

individuals from arbitrary government intrusion into life, liberty, and property.

54. Under the Due Process and Equal Protection Clauses of the United States

Constitution, those who wish to marry a person of the same sex are entitled to exercise the same

fundamental right as is recognized for persons who wish to marry a person of the opposite sex;

accordingly Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other Alabama law,

regulation, policy, or practice that excludes same-sex couples from marriage do not withstand

constitutional scrutiny.

55. As Alabama’s Attorney General, Defendant Strange’s duties and actions to enforce

Alabama’s exclusion of same-sex couples from marr iage, violate Plaintiffs’ fundamental right to

marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and

intimate association.

56.

As Probate Judge of Mobile County, Alabama, Defendant Davis ensures

compliance with Alabama’s exclusion of same-sex couples from marriage by, for example,

refusing to issue marriage licenses to same-sex couples. This violates Plaintiffs’ fundamental right


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to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and


57. As Probate Judge of Baldwin County, Alabama, Defendant Russell ensures

compliance with Alabama’s exclusion of same-sex couples from marriage by, for example,

refusing to issue marriage licenses to same-sex couples. This violates Plaintiffs’ fundamental right

to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and


58. Defendants cannot satisfy the requirements of due process because Alabama’s

exclusion of same-sex couples from marriage is not rationally related to any legitimate

governmental interest and thus cannot survive even rational basis review, much less the strict level

of scrutiny that applies to deprivation of the fundamental right to marry and interference with

fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate

association.

59. The Equal Protection Clause is essentially a direction that all persons similarly

situated should be treated alike. There is no relevant distinction between same-sex couples and

opposite-sex couples with respect to marriage.

60. Alabama’s exclusion of same-sex couples from marriage is subject to heightened

scrutiny under the Equal Protection Clause because it discriminates on the basis of sexual

orientation and gender, and because it selectively deprives a class of persons of fundamental rights.

61. Defendants cannot satisfy the requirements of equal protection because Alabama’s

exclusion of same-sex couples from marriage is not rationally related to any legitimate

governmental interest and thus cannot survive even rational basis review, much less the heightened

level of scrutiny that applies.


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62. Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other Alabama law,

regulation, policy, or practice that excludes same-sex couples from marriage violate the Due

Process and Equal Protection guarantees of the United States Constitution, both facially and as

applied to the Plaintiff couples.

63. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein,

which are of a continuing nature and will cause them irreparable harm, and Plaintiffs are entitled

to declaratory and injunctive relief on this basis.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

64. Declaring that the provisions of and enforcement by Defendants of Alabama’s laws

excluding same-sex couples from marriage, including Ala. Const., art. I, § 36.03, Ala. Code § 30-

1-19, and any other sources of state law that exclude same-sex couples from marrying violate

Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States

Constitution;

65. Declaring that the practice, by Defendants and their subordinates, of refusing to

recognize the marriages of same-sex couples violates Plaintiffs’ rights under the Due Process and

Equal Protection Clauses of the United States Constitution;

66. Declaring that the any marriages validly entered into by Plaintiffs in any

jurisdiction, including Alabama, are valid in the State of Alabama;

67.

Temporarily, preliminarily, and permanently enjoining enforcement by Defendants

of Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other sources of state law, policy, or

practice that exclude Plaintiffs from marriage or that refuse recognition of the marriages of

Plaintiffs;


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68. Requiring Named Defendants Davis and Russell and the members of the Defendant

Class to issue marriage licenses to Plaintiffs and members of the Plaintiff Class, pursuant to the

same restrictions and limitations applicable to opposite-sex couples, and without regard to the

gender or sexual orientation of the applicants, and to recognize the marriages thereby validly

entered into;

69. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant

to, inter alia, 42 U.S.C. § 1988 and other applicable laws;

70. Awarding pre- and post-judgment interest at the lawful rate as allowed by law; and

71.

Granting such other and further relief as the Court deems just and proper and any

other relief as allowed by law.

DATED: March 19, 2015 Respectfully submitted,

NATIONAL CENTER FOR LESBIAN RIGHTS

By: /s/ Shannon P. Minter

Shannon P. Minter *

Christopher F. Stoll* National Center for Lesbian Rights

1100 H Street, NW, Suite 540

Washington, DC 20005Telephone: (202) 734-3545

Facsimile: (415) 392-8442

Email: [email protected]: [email protected]

Heather Fann

Boyd, Fernambucq, Dunn & Fann, P.C.3500 Blue Lake Drive, Suite 220

Birmingham, AL 35243

Telephone: (205) 930-9000

Facsimile: (205) 930-9010Email: [email protected]

Randall C. Marshall (MARSR3023)ACLU Foundation of Alabama


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P.O. Box 6179

Montgomery, Alabama 36106-0179

Tel: (334) 420-1741Fax: (334) 269-5666

Email: [email protected]

David Dinielli*Cal. Bar No. 177904

Scott D. McCoy*

N.Y. Bar No. 3970803Southern Poverty Law Center

400 Washington Avenue

Montgomery, AL 36104

[email protected]

[email protected]

Ayesha N. Khan*

D.C. Bar No. 426836

Zachary A. Dietert*

D.C. Bar No. 1003784Americans United for Separation of Church and State

1901 L Street, N.W., Suite 400

Washington, D.C. 20036202-466-3234

email: [email protected]

email: [email protected]

Attorneys for Plaintiffs

*Admitted pro hac vice


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AO 440 (Rev. 06/12) Summons in a Civil Action

U NITED STATES DISTRICT COURTfor the

__________ District of __________

)

)))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Southern District of Alabama

JAMES N. STRAWSER and JOHN E. HUMPHREY,

et al., individually and as class representatives

14-0424-CG-C

LUTHER STRANGE; DON DAVIS; and TIM RUSSELL

in his official capacity as Probate Judge of Baldwin

County, Alabama, individually and as

Class Representative

Tim Russell

Probate Judge of Baldwin County, Alabama

220 Courthouse Square

Bay Minette, Alabama 36507

Christopher F. Stoll

National Center for Lesbian Rights

870 Market Street, Suite 370

San Francisco, CA 94102

3/19/2015

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

14-0424-CG-C

0.00

Case 1:14-cv-00424-CG-C Document 95-1 Filed 03/19/15 Page 2 of 2

Documents

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